The demandant claims to be entitled to posses* sion of the demanded premises under deeds to himself from Abijah Austin and Stephen Huse. The estate formerly belonged to Henry Austin. He conveyed it by deed dated April 19 1854, to his son Abijah Austin, who at the same time gave him a bond for the support of himself and wife for their respective lives, and also a mortgage of the same property to secure the faithful performance of the conditions of the bond. In the course of the ensuing summer, this mortgage deed was burnt by the mortgagee; but under what circumstances is not stated in the report. It was said by the counsel for the demandant at the argument to have been by an' accident; but the manner of the loss does not appear to have any bearing upon the questions of law arising upon the bill of exceptions. In the month of October next afterwards, Abijah made a new mortgage of the same estate to Henry, which was intended to represent the first one, and to be as near like it as the scrivener could make it. After it was duly executed in all other respects, it was left with Ira Hall for the mortgagee. The demandant contends that it was never in fact delivered to the mortgagee, and therefore that no title passed by it to him. But this question was submitted to the jury under proper instructions, and their verdict has established the fact that it was delivered. A deed may be delivered to an agent, and thereby the estate will be as effectually transferred as if it had been placed directly in the hands of the grantee. Hedge v. Drew, 12 Pick. 141. Foster v. Mansfield, 3 Met. 412. Hall held the deed from Abijah to Henry during the lifetime of the latter, who upon different occasions made use of expressions from which it was competent for the jury to infer that he accepted the deed which had been made, and ratified the delivery to Hall as a delivery to himself. The testimony of Alvah Austin as to what his father told him a short time previous to his decease, and which was objected to by the plaintiff, was admissible for this same purpose, because it tended to show his acceptance of the deed, and his ratification of the delivery of it to Hall as his agent.
The antedating of the deed, and of the certificate of the ac* *239knowledgment of it, by the magistrate by whom it was taken, was improper and objectionable. But it is conceded that this was not procured to be done by the mortgagee, or for any unjust or collusive purpose; but occurred in consequence of the desire of the mortgagor that the new mortgage should correspond in all respects, as far as possible, with the old one which had been burnt. And it was found by the jury that it was made, executed, acknowledged and delivered in good faith on the part of both parties, for the purpose of replacing the original, and to put the title as it was before that was destroyed. Under such circumstances, the error in the date of the deed and of the certificate of the acknowledgment cannot, in a case where there was no intervening conveyance, lien or attachment, be regarded as fraudulent or treated as inoperative.
It is further objected by the plaintiff that the court erred in ruling that the bond given by Abijah to Henry could not be discharged, waived or released by paroi, but only by writing or by delivery to the obligor. It is quite unnecessary to express any opinion upon this proposition, since it is apparent upon the facts stated that there was no evidence in the case which called for such ruling, or to which it could be applicable as a practical question. The bond was never given up or surrendered, nor is there any proof that Henry at any time intimated an intention or willingness to give it up, or to release or discharge the obligor from the performance of its condition, or from any of the stipulations contained in it. He was, for some reason, discontented with the conduct and management of Abijah, and was obviously desirous of having him leave the land. The fact that he obtained and held exclusive possession of the mortgaged estate had a decided tendency to show that he insisted upon an exact compliance with the condition, rather than a purpose to allow the bond to be cancelled or extinguished.
The mortgage to Henry Austin remaining in force after his death, his administrator, upon breach of the condition and for the purpose of foreclosing the right of redemption, was entitled, under the provisions of the statute, to enter upon the mortgaged estate and retain possession of it. Gen. Sts. c. 96, § 9. Rev *240Sts. c. 65, § 11. He therefore is entitled to defend this suit, and his right will equally protect his tenant, the other defendant, who holds under him.
The part of the premises which the plaintiff claims to hold under the deed from Stephen Huse is that portion of the land upon which he caused to be levied an execution which issued upon a judgment in his favor against Henry Austin. The attachment upon the writ of Huse against him was made on the 33d of October 1855. At that time, as well also as at the time of the levy of the execution, Henry Austin held no right, title or interest in the estate except as mortgagee. This was not a right subject to be taken upon mesne process or execution, and therefore Huse derived no title by the levy of his execution. Eaton v. Whiting, 3 Pick. 484. As he took nothing himself thereby, he had no title which he could convey to the plaintiff, who therefore derived no benefit from the deed made to him by Huse.
The several rulings and instructions of the presiding judge at the trial appearing to have been correct, the exceptions of the plaintiff must be overruled, and judgment entered on the verdict for the defendants.